Back in 2017, many breathless legal observers (including me) thought that the California Supreme Court had just opened up a major loophole in Prop 13/Prop 218 restrictions on raising local taxes. The two voter-enacted amendments to the state constitution otherwise require that any new taxes receive a two-thirds vote to go into effect.
But the Court ruled that year in California Cannabis Coalition vs. City of Upland that the supermajority hurdle did not apply to taxes put on the ballot through citizen petitions. Some legal experts and advocates pushed back on how much of a loophole the decision opened, suggesting that the case was overblown.
Now today we have confirmation that in fact the Supreme Court did dramatically scale back the two-thirds hurdle that has stymied local revenue measures.
The case at issue arose in San Francisco, where Proposition C passed by a majority, but not two-thirds, to fund homeless services through a new corporate tax. The measure was placed on the ballot by a citizen petition, so the city attorney had determined that only a simple majority was needed, based on the 2017 decision.
The Howard Jarvis Taxpayers Association sued, lost and appealed, but yesterday the California Supreme Court declined to review. So barring any new cases or contrary appellate court rulings on this same issue, the case is closed, so to speak. That is, unless the voters approve a new restriction to close this loophole, as Prop 218 was originally placed on the ballot to close previous loopholes in Prop 13 based on an earlier California Supreme Court decision.
The ramifications? Any local government that wants to raise revenue for purposes like new transit or wildfire prevention could theoretically ask a nonprofit or business group to conduct signature gathering to place the measure on the ballot. Then they would only need a simple majority approval at the ballot box. In short, as I wrote back in 2017, this decision could be transformational for local “self-help” efforts to fund badly needed infrastructure projects and services.
The California Supreme Court heard argument today in a case that has big implications for regional transportation planning in California’s cities (Cleveland National Forest Foundation et al. v. San Diego Association of Governments et al. [People, Intervener and Appellant], S223603). Those transportation investments in turn have big effects on where housing can go.
The case involves San Diego’s horrible regional transportation plan, developed back in 2011 by the San Diego Association of Governments (SANDAG). The plan happened to be the first in the state to have to comply with SB 375, a law linking transportation investments with land use policies to reduce greenhouse gas emissions. But while the plan reduced short-term greenhouse gas emissions, it projected them to rise out through 2050. Since SB 375 only required reductions through 2035, SANDAG thought it could get away with slacking in later years, contrary to state policy on long-term (2050) climate goals.
Environmental groups, along with the California Attorney General’s Office, sued SANDAG under the California Environmental Quality Act (CEQA), arguing that San Diego’s agency inadequately considered the plan’s effects on greenhouse gas emissions by 2050. SANDAG lost in the trial court and then in the appellate court.
Despite the losses in the lower courts and the “bad facts” for SANDAG, some of the justices today were surprisingly skeptical of the argument that the CEQA environmental review documentation was done poorly. Justice Goodwin Liu in particular seemed to indicate that he thought the environmental review was up front about the inability of the plan to meet the 2050 goals and that it may have done sufficient work disclosing to the public that impact.
But Janill Richards, arguing for the Attorney General’s office, did a nice job explaining that the document is not just about SANDAG being able to shrug off a bad impact but requiring reasonable (feasible) mitigation, such as alternative fuel charging and local climate action plans.
The other justices were silent, except for Justice Mariano-Florentino Cuéllar, who also asked a lot of questions along the lines of Justice Liu.
Given the silence of the other justices and the “bad facts” for SANDAG in this case, I’d still guess that the Supreme Court will affirm the lower courts’ decision and require SANDAG and other agencies to do a better job evaluating impacts out to 2050 in their CEQA documentation.
But it may be a closer decision than I expected, given some of the concerns expressed about burdening agencies with too much oversight from the courts on these long-term issues.
As my Legal Planet colleague Rick Frank blogged, the California Supreme Court on Wednesday granted review of San Diego’s really bad regional transportation plan. I detail the history here, but basically San Diego’s regional transportation agency delivered a plan in 2011 that was supposed to comply with SB 375 (Steinberg, 2008), a landmark law linking transportation spending with long-term greenhouse gas emission reductions.
Instead, San Diego’s agency issued a plan that projected reductions in vehicle miles traveled only in the short run, via accounting gimmicks like more telecommuting and estimated smoother traffic flows from highway widening. And then the plan actually showed backsliding on emissions going out to 2050.
Petitioners argued successfully at the trial and appellate court level that this backsliding contravened California’s long-term policy on greenhouse gases, specifically Governor Schwarzenegger’s 2005 executive order calling for an 80% reduction in greenhouse gas emissions from 1990 levels by 2050. Notably, the state’s 2006 climate legislation, AB 32, only discussed a 2020 greenhouse gas target.
But will this case already be moot by the time the court decides it? There are two reasons to think so:
First, San Diego is already well into its second transportation plan in the post-SB 375 world, which presumably will be much stronger than its 2011 version. That version was already in process when SB 375 was enacted and was the first out of the gate in California to have to comply with the new law.
Second, the California Legislature is currently debating a series of bills that could solidify California’s long-term greenhouse gas emissions reduction goals. If those goals get legislated, particularly ones out to 2050, then a debate over whether the 2005 executive order is legally enforceable in this instance becomes moot.
Of course, a win for the plan’s opponents will only strengthen the hand of advocates for better, more sustainable transportation and land use planning. It will force SB 375 plans to contemplate real, meaningful changes in land use and transportation decision-making, because these greenhouse gas reductions will have to be permanent and cumulative. And it will bolster efforts by public officials in other contexts to reduce long-term greenhouse gas emissions in order to comply with the California Environmental Quality Act, which this case is based on.
So in the end, I hope the court upholds the lower court decision. But I also hope the case becomes moot with legislative action this year.
